As you may (or may not) remember, the 2nd Circuit decided United States v. Decastro, No. 10-3773, 2012 U.S. (June 1, 2012). Then on June 6th, the Court ordered supplemental briefs from the Appellants and Appellees, as to how that case might or might not have merit in deciding the case at bar.

What follows will be the supplemental brief by the Appellants/Plaintiffs (Kachalsky) and then the reply brief by the Appellees/Defendants (State of New York).

As I reported in the main 2A cases thread, earlier today, the oral arguments were scheduled to take place, today.

What I didn't find out until later, the CA2 does not publish the orals like most other Circuit Courts. Instead, a copy can be ordered and will be delivered to you. At a cost of about $30.

A retired appellate attorney over at MDShooters has used his ECF login (which is different from a normal PACER account) to order the CD of the orals. In a few days, it should be present at MDShooters.com, where we can grab it. If I see it first, I'll let everyone know where to get it.

Ok, I'm back. I'll try to post my complete notes from the oral arguments in the next post. First, some general thoughts [which he has yet to do - Al].

1. There was a general sense in the courtroom today about how important this case is. It was the last one heard, and the judges took a break immediately beforehand. Oral arguments lasted about 90 minutes! (Each side had been allotted 10 minutes.)

2. Westchester County as a defendant was basically a non-entity. They were trying to argue that they shouldn't be a party to the case, but the judges weren't buying it. Their argument only lasted 5 minutes. The NY State AG's office was the main defendant, arguing in favor of proper cause.

3. The State essentially conceded that THE SECOND AMENDMENT APPLIES OUTSIDE THE HOME. This is huge. At the very least, the Court should hold that the right to bear arms protects a right to bear arms in public.

4. The State was arguing that the proper cause regime is constitutional because New Yorkers can carry rifles and shotguns in public. HUH? But then they admitted that you'd probably get arrested for causing public alarm if you did so in NYC. I don't know how the judges will rule on this one.

5. Alan Gura was incredible, as expected. I can't imagine anyone else I'd rather have on our side fighting for our rights.

6. As far as reading the judges, it's tough to say. Judge Wesley was asking Gura a ton of questions, but I think it's because he agrees with him. Judge Katzmann was mostly silent the whole time. Judge Lynch asked some tough questions to both parties.

So, to sum up:

--It looks like the Second Circuit will hold that the Second Amendment protects a right to bear arms in public for self-defense. What remains to be seen is whether they'll buy the State's argument that, since New Yorkers can carry rifles and shotguns in public, there's no right to carry concealed handguns.

I'm sure the guys reporting is colored, but I hope not by much! If it is as he reports it, then the State has conceded that carry outside the home is part of the right. That is a huge concession!

The gentleman in NY has posted more on the Kachalsky orals (see the link in my previous post). He first gives this disclaimer:

Quote:

Originally Posted by .357MagNYC

Just to clarify, what I did was take about 10 pages of notes where I wrote down the gist of what everyone said. Originally, I copied and posted the whole thing here, but then realized that might be a problem since I was basically misquoting everyone.

Instead, I'll try to keep posting summaries of what was said from time to time. If anyone knows how to get the transcript from a Second Circuit oral argument, please let me know. I called the court clerk today, was transferred to a voice mail, left a message, and will probably never hear back from the person I called.

Then in a series of 3 posts, he writes:

Quote:

Things started out on a somewhat humorous note, which makes me think the judges might be sympathetic to our cause.

Judge Wesley started out asking Alan Gura if it would be constitutionally protected to carry a handgun, just because. Not for self-defense, but just because a person liked the feel of a "Colt .45" and wanted to carry one. Gura said that would still be a protected interest, as would carrying for target practice or hunting.

Judge Lynch asked if there's a right to shoot guns in the air to celebrate Cinco de Mayo. Gura responded that states can regulate the discharging of firearms.

Judge Lynch then asked if the class of protected arms includes shoulder-mounted anti-aircraft missiles. Gura responded that those are not protected under Heller's common-use test.

Judge Lynch then asked what would happen if someone stood in the street in NYC with a rifle or shotgun, and Gura said that person would probably be arrested for disturbing the peace or something. Gura added that Heller specifically said that the Second Amendment did not allow people to carry any arm whatsoever for any purpose whatsoever.

Next, in what will probably be an essential point in the decision, Judge Lynch said something to the effect of, "So the legislature can't say no to handguns, but only allow people to carry long guns." Gura responded that Heller said that the handgun is the quintessential weapon for self-defense chosen by Americans.

Judge Katzmann then got to the core of the question, and asked why the state couldn't have a regulation stating that you need a documented threat in order to get a permit (so that individuals who can't show a recurrent threat wouldn't get licenses).

Gura replied that people are often raped or murdered without any previous threats against them. He said that the 2A protects the right to be armed and ready in case of a threat.

Judge Wesley (who admitted he's an avid hunter) then asked if the 2A would change when public preferences change. Heller says that handguns are protected because they're America's weapon of choice--does that mean handguns can't be regulated except under strict scrutiny?

Gura answered that the 2A has always meant that weapons commonly used for lawful purposes are protected.

There was then a historical discussion with Judge Wesley, where Gura said that the Bill of Rights is not technologically hind-bound to the technology available in 1778.

In another key moment, Judge Wesley then said something to the effect of, "Heller makes a strong statement in favor of your view that the 2A extends beyond the home." He then asked Gura why he concedes that the state would have a legitimate interest in prohibiting concealed carry.

Gura responded that the SCOTUS is deferential to the states on that one, that states can regulate the manner of carrying, and that there's a historical notion that concealment is dangerous and sneaky.

Continuing with the discussion of concealed vs. open carry, Judge Wesley then asked why the government didn't have the same interest in banning both forms of carry, and why must the state's citizens suffer one of the two burdens to public safety (either through concealed or open carry).

Gura answered that the state's interest stops at the point where the right is completely destroyed. Citizens must enjoy the freedom in one manner or the other.

... [T]he next topic discussed were safe-storage laws, which Gura said would probably survive scrutiny.

Next, on the topic of ammo capacity limits, Judge Lynch asked if it wouldn't make sense to leave those regulations up to the legislature, rather than to judges who had no clue about guns. When Judge Lynch asked what competence the courts have to rule in these matters, Gura replied that the job of the courts is to determine if the regulations are constitutional, and referred back to common use for traditional lawful purposes with reference to ammo capacity.

There was then a discussion in which Judge Lynch said that Gura's argument isn't really that licensing authorities have unbridled discretion, but that anyone is entitled to carry because they're American. Judge Wesley then chimed in and said that Gura's argument is that NY's heightened standard of self-defense is not enough to pass constitutional muster.

Judge Wesley then talked with Gura about differences between the home and in public. Judge Wesley acknowledged that most crimes are committed with illegal guns. Gura acknowledged that the interest in self-defense is most acute in the home.

Judge Wesley then went on to ask about the analogy to the 1st Amendment, which seems problematic since the 2A has far more immediate deadly effects. Gura pointed to the part in McDonald where the Court states that the 4th, 5th, and 6th Amendment rights all have dangerous effects, since they result in the release of dangerous criminals into society.

Judge Lynch then added that, even under the 1st Amendment, all kinds of speech can cause harm, but that courts have always responded that that's the price we pay for our 1st Amendment rights. He then said something to the effect of, "maybe a few dead bodies is the price we pay for the Second Amendment."

Gura said that the states could address those concerns through time, place, and manner restrictions.

Judge Lynch then asked about laws banning guns from within 100 feet of schools, and Gura said that would amount to an all-out ban in places like NYC. Judge Lynch also mentioned restrictions on possession within 100 feet of schools, churches, abortion clinics, daycare centers, and bars. He said something to the effect of, "if you can't carry within 100 feet of an airport, and there are too many airports, then you have no right, correct?" Gura added that there's no problem with state laws banning possession of a firearm while intoxicated, and stressed that this lawsuit is not the last word on permissible restraints.

In closing, Gura said that this law applies everywhere in NYS and places a substantial burden on the 2A right, since people can't walk outside their own door with a gun without a license, which they can't have without proper cause.

Next it was the State's turn to argue. Gura got a chance to respond at the end.

I will be checking the link to gather what else he has to report. It is obvious that .357MagNYC takes much better notes than I. I applaud him for his completeness!

Esqappellate, a retired appellate attorney and a member of MDShooters, has used his ECF access to order the audio of the orals. I hope to bring that here, when it is available.

Judge Katzmann started out the questioning, asking why people didn't have a need for self-defense wherever they are. NYS replied that Heller & McDonald limit the 2A right to the home for handguns.

Judge Kaztmann then asked about Stevens' dissent in Heller, where he suggests that Heller is just the beginning, and he contemplates the expansion of the right beyond the home.

Judge Lynch then chimed in with a great point. He asked how NYS could justify a limit to the home when the text of the 2A says "keep and bear"? The Judge said that Heller and McDonald only dealt with keep, but how could NYS justify a right to bear arms that becomes no right at all?

NYS replied that there may be a 2A right outside the home, but it doesn't cover concealable weapons.

Judge Katzmann then said it's not an answer to ban handguns so long as long guns are allowed (i.e., you can't ban handguns just because you allow long guns).

NYS replied that Heller indeed says that, but limits the right to the home. There's a difference between access to a handgun in the home, as opposed to a long gun.

Judge Katzmann then asked what would happen if he carried a long gun in NYC.

NYS replied that carrying a weapon in a dangerous way that frightens the public has traditionally been forbidden, and bans on carrying concealed and concealable weapons have been upheld in the past.

A bit later, NYS stressed that since NY allows the carrying of long guns, the 2A is still intact as a right, even if there's no right to bear concealable handguns in public.

Judge Wesley then pressed NYS on the fact that, since some citizens are allowed to carry concealed, there's an acknowledgment that some citizens have that right. NYS couldn't really answer that one.

Judge Wesley then said that the court is basically considering 2 issues: 1) Determine the parameters of the 2A right under Heller & McDonald; 2) If Gura is correct and that right extends beyond the home (here Judge Wesley acknowledged that Gura has a good argument), what standard of scrutiny would apply to regulations.

NYS replied that intermediate scrutiny would apply, and pointed to Heller's mention of presumptively lawful prohibitions on carrying in sensitive places. NYS said that unwitting members of the public risked being exposed to the dangers of firearms, and that NYS was tailoring the restriction to how strong the need for self-defense is.

Judge Lynch then responded with a great point: if less than 50% of the people eligible to bear arms have the right, then it's really not much of a right at all.

NYS responded that the other 50% can carry long guns.

Judge Lynch then went into a First Amendment analysis, and said that you don't need a particularized need under the 1A. He discussed the origins of prior restraint, where you needed a license from the king in order to open a printing press.

Then he said something that to this day gets me all choked up: something like "Freedom means you don't have to go to the king for a license."

Judge Lynch then said that Gura is just asking for the narrowest thing for the 2A right (although he suspected that Gura would not stop here, and that there would be more to come from him in the future): that you didn't need to go to the king for permission because the Constitution says we all have this right.

NYS answered that Gura concedes there are limits to the 2A, subject to an interest-balancing approach by state legislatures. NYS said that when a concealed handgun is present in a public place, the nature of that public place changes, and that it's a similar situation with open carry.

Judge Katzmann then said that concealed carry is unknown to other people, who are unaware of the weapon.

NYS answered that if NYS made more licenses available, people would know there are more guns out there. He said this would also raise public safety concerns, with accidental use, mistaken use, and someone else taking the gun from a licensed holder. Then NYS kept hammering at the notion that Gura conceded that the government's interest can justify restrictions [but the only thing Gura "conceded" was that safe-storage laws would probably survive scrutiny].

NYS had a pretty crazy argument that the current law permits the licensing official to tailor the license to the need for self-defense, and came up with the example of being allowed to carry on the Upper West Side, where there are people hanging around and threatening you, but not when you're dropping your children off at school. NYS said the state's compelling interest in public safety justifies the proper cause requirement, just like the examples that Gura conceded.

In closing, though, NYS basically conceded that the 2A right extends outside the home.

Note well that last stetment. That is where the State may have made a tactical blunder.

Quote:

Originally Posted by .357MagNYC

Gura then came back with 4 quick points.

1) Gura distinguished the present case from Masciandaro, a 4th Cir. case dealing with carry in national parks. Here, NYS prohibits the ability to carry a handgun anywhere, by anyone, without proper cause.

2) Gura said that many of the old cases upholding bans on carry prohibited the carrying of pocket pistols, which were the only pistols available to Freedmen in the South, but allowed the carrying of the Army-Navy pistols that were owned by Ex-Confederate soldiers, which were larger guns like the Colt .45 that Judge Wesley mentioned earlier. But NYS doesn't allow people to carry those types of guns, either, and people can conceal carry 1911s.

3) There is no legitimate state interest in rationing a right and balancing it out of existence.

Here Judge Wesley interrupted and mentioned that constitutional rights have different applicability in the home as opposed to in public.

Gura responded that more restrictions are allowable in public, but that people have the right to protect themselves and their families in public.

4) Gura closed with saying it's a quality of life issue. Plaintiffs are reasonable people, and reasonable people would not go into a situation knowing there would be a confrontation. But the reality is, no one knows when such a confrontation may occur. The 2A right gives a person the peace of mind, that you can walk into a dark parking lot or through a bad neighborhood if you have to. It protects a sense of well being.

And that was the end of oral arguments.

If the audio of the orals bears out the above synopsis (when Esqappellate uploads it), then I think we can see a good decision from the CA2.

Interesting reading. I suppose it was deemed "strategic," but I'm actually sorry to see that Gura even used the word "reasonable." The 2nd Amendment RKBA is absolute, and "reasonable" has nothing to do with being "allowed" to exercise a fundamental, absolute right. Once you use the 'R' word, you're in essence conceding that the state has a right to decide when and where it's "reasonable" to allow you to carry, and then it's not a huge jump to allowing the state to decide who it's reasonable to allow to carry.

I'm actually sorry to see that Gura even used the word "reasonable." The 2nd Amendment RKBA is absolute, and "reasonable" has nothing to do with being "allowed" to exercise a fundamental, absolute right.

No right is absolute. Does a convict on death row have the right to keep and bear arms? If not, then the right isn't absolute. There are other restrictions that even most gun rights activists would agree are reasonable. To date, the SCOTUS has said only that the people have the absolute right to keep and bear arms in their homes, although they have hinted that the right isn't exclusive to the home. What "reasonable" restrictions are will be the subject of litigation until well into the second half of this century.

__________________Violence is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and valorous feeling which believes that nothing is worth violence is much worse. Those who have nothing for which they are willing to fight; nothing they care about more than their own personal safety; are miserable creatures who have no chance of being free, unless made and kept so by the exertions of those better than themselves. Gary L. Griffiths, Chief Instructor, Advanced Force Tactics, Inc. (Paraphrasing John Stuart Mill)

No right is absolute. Does a convict on death row have the right to keep and bear arms? If not, then the right isn't absolute. There are other restrictions that even most gun rights activists would agree are reasonable. To date, the SCOTUS has said only that the people have the absolute right to keep and bear arms in their homes, although they have hinted that the right isn't exclusive to the home. What "reasonable" restrictions are will be the subject of litigation until well into the second half of this century.

The SCOTUS has done a lot more than "hint" that the RKBA extends beyond the home. ALL the arguments to the effect that the 2nd Amendment (as "ratified" by Heller) only applies within the home completely ignores the facts that (a) Heller spoke specifically to the home because that's the question that was asked, and (b) nowhere in the text of the 2nd Amendment is "in the home" mentioned or even implied.

But what this case is about (as well as the Maryland case) is not what "reasonable" regulations may be uniformly applied to the bearing of arms, but the prohibition of exercising a Constitutionally-guaranteed right for no clearly defined reason other than not being able to articulate a sufficiently scary-sounding immediate threat against your person.

As the key saying puts it, "One should not need a permission slip to exercise a fundamental right."

"One should not need a permission slip to exercise a fundamental right."

And on that, we can agree wholeheartedly!

__________________Violence is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and valorous feeling which believes that nothing is worth violence is much worse. Those who have nothing for which they are willing to fight; nothing they care about more than their own personal safety; are miserable creatures who have no chance of being free, unless made and kept so by the exertions of those better than themselves. Gary L. Griffiths, Chief Instructor, Advanced Force Tactics, Inc. (Paraphrasing John Stuart Mill)

The good folks over at MD Shooters (thank you Esqappellate for buying the audios - yes, plural) have assembled the Kachalsky oral arguments into one MP3 file and this is being hoster by Maryland Shall Issue (MSI - the local on the ground org). It is available, here. The file runs at 36.3 MB (1 hr and 20 min), so it is probably best to right click the link and save to your own computer.

Folks, this is unprecedented, as the CA2 generally allows only 10 minutes per side. Here, Alan Gura presents his side for 40 solid minutes, before the State gets its turn and the panel still allows Gura some rebuttal time!

The panel is very well briefed (as can be seen by the amount of questions they "harass" Gura with). Oh, and he doesn't fall for the "in the Bar" thing that he got tongue-tied at the 7th with!

At oral arguments, judges more often than not question a plaintiff/appellant, who is challenging the constitutionality of a law (remembering that the law is presumed to be constitutional to begin with). Such questioning can seem brutal, but the judges are merely trying to get a grip on just how far the plaintiff/appellants theory extends.

If you really listen to what is happening, as soon as Gura answers on point, the judge(s) move to a new question. Why was Gura "grilled" so much more than the State? Because Gura has more to say to the panel than the State.

The very questions the judges asked, show several things. They are 2A novices. They wanted to get to the logical implications of Gura's theory. They wanted to see the policy implications. They were also very well versed in the briefings.

Gura possibly made the best point of all, when he talked about the 1A analogy and "prior restraint." If the judges didn't at first "get it," they certainly did when Gura used the "permission from the King," analogy - They used it against the State AG, later on.

Even though the NY AG used a TPM analogy as the constitutional reason for keeping the law intact, the judges didn't let him off the hook. It's rationing of a right and the AG was backed into a corner of his own making. That corner was first painted when the NY AG finally admitted that self-defense occurs outside the home.

It was obvious to me that certainly 1, perhaps 2 judges were leaning towards Gura's arguments. There was a lot of cross-talk between them.

After listening to it again, they did a pretty good job grilling the defense. They had him on the defensive a lot and he really sounded at a loss most of the time, like he couldn't believe they were actually questioning him.

It'll be interesting to see how this goes, since NJ has a similar law regarding CC.

The CA2 panel did exactly what many of us thought. Although the suit was aimed at carry in public, as part and parcel of the right, the court looked only at concealed carry and concluded that the NY State law was a valid regulation. This, regardless of the fact that open carry is completely banned. The court sweeps past this with barely any regard at all.

The court does spend 2 pages of writing on why they will not address 2A concerns by importing certain 1A standards. This, despite the fact that the CA4 and CA3 (and even another CA2 panel - US v. DeCastro) did import some of that reasoning.

The core of the right, as seen by this CA2 panel, is "in the home." Anything else deserves less scrutiny. Here, the court couches its "reasonable regulation" in terms of intermediate scrutiny. This, like so many district court decisions is nothing more than rational basis in which the law stands.

An older lady who went through training and was licensed to carry in other states and who would have been armed except for Illinois' outright ban - who was brutally beaten in a church...

That's a pretty good case.

Moore is a corrections officer IIRC and at one time did carry on the job, but switched from being a state employee to a private security contractor employee - something like that. That's a pretty good case too - at least to point out the arbitrary nature of the Illinois law.

Wouldn't it make sense for SAF to wait to hear what the 7th says before deciding what to do with Kachalsky?

Even if we believed that we should look solely to this highly ambiguous history and tradition to determine the meaning of the Amendment, we would find that the cited sources do not directly address the specific question before us: Can New York limit handgun licenses to those demonstrating a special need for self-protection? Unlike the cases and statutes discussed above, New York’s proper cause requirement does not operate as a complete ban on the possession of handguns in public.

What they have in Illinois DOES operate as a complete ban on the possession of handguns in public. I think when Karl Trieble tried
to intimate that the law didn't, Judge Posner rejected that - I'm referring to the 4 corners of the house argument, which Posner replied something like - "if you live in an apartment - you don't have any land"

I know Judge Posner isn't beholden to other circuit court judges but my reasoning is this - if the judges in Kachalsky could see that an ourtright ban on public carrying is unconstitutional, then the Judges at the 7th circuit must certainly see that also. And if Judges Katzmann, Wesley and Lynch consider the proper cause exception in NY to cause NY's law to not be a complete ban on the possession of handguns in public, then IL, which has no proper cause provision must therefore have in existance a complete ban on the possession of handguns in public which is unconstitutional.

Judge Williams talked about it in her example of a woman being stalked, and having to to disarm herself when going to and from work, and the stalker of course knowing that under Illinois law she would be vulnerable during that time...

Trieble replied "It's a difficult policy choice that the legislature has made..."

Posner interupts "Sounds pretty easy, other states do make an exception for people who have a protective order..."

The first two items are generally done together in a single motion (per esqappellate, a retired appellate attorney over at MDShooters). IIRC, there is a 14 day time limit to file the motion. Considering that the CA2 very seldom accepts motions for en banc hearings, this would be a long shot. If accepted, Alan Gura runs the risk of a negative ruling with a well written decision (as opposed to this piece of circular writing).

If Gura decides to seek a petition of cert, he can attempt to get it before the Court in this years session. Or, he can take his time (he has until Feb. 27, 2013 to file) to craft a very well written brief, with the goal towards next years court session (and an early Oct. 2013 hearing date).

Understand, there are risks in carrying this case further. Alan Gura will necessarily be weighing those risks. The State of New York will continue to quantify this case as a concealed carry case, as opposed to Gura's general right to carry. This will be an obstacle, as the lower courts have assumed the State is correct and relegated Gura's actual case to footnotes. This will be no small feat to turn this around, at this stage.

Should Gura go for cert, and it is granted, the Court will not simply GVR the case (as some have implied). The Court will have to reach the merits and give some guidance to the lower courts before any such remand can be made.

A more likely scenario (should cert be sought and granted) would be for the Court to decide if public carry is close enough to the core right of self-defense, that the State law should fall. That's not as easy as it might seem to us, on first blush.

I believe that Justice Thomas and Justice Alito would be on our side. C.J. Roberts and Justice Scalia would lean towards our side, but would have to be convinced.

Justice Kennedy however, would have to be coerced. Such coercion would necessarily entail Judge Posner (CA7 - Moore/Sheppard) issuing a well written decision in favor of the SAF/NRA. Gura holding back (in the hopes of a favorable CA7 decision) in filing for cert is a tactical response I believe he will make.

Judge Posner is very well respected in legal circles, even within the Supreme Court. A decision written by him (Posner) striking the IL law and stating that citizens must be allowed some manner of carry for self-defense, would go a long way towards turning the current case from one of concealed carry alone, back to allowable carry in some form. This would probably move Justice Kennedy over to our side.

Too, should a favorable decision be given at the CA7, and IL moves for cert, the odds for Kalchalsky would have just increased.

There are several other scenarios, depending upon what the CA4 and CA3 decide. So, at this point in time, the dynamics are pretty fluid.

Gura holding back (in the hopes of a favorable CA7 decision) in filing for cert is a tactical response I believe he will make.

Agreed. And even in the case of an unfavorable decision, he will have the opportunity to craft the cert request accordingly. Glad to hear he can wait if strategy so dictates.

If I correctly recall Posner's views on the matter, the idea that bearing is a home-bound right will get NO consideration from him. Since this case seems to rest on that error, it will have no persuasive authority with him. Here's to Posner doing the right thing.

For we who are vested in a good outcome: What drama, what nail biting! So much at stake.

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